Dossier 14-15: Women in Iranian Civil Law 1905-1995

Only the blind overlook the
worsening condition of women under the Islamic regime. The separation of
religion and state is incomplete until the Iranian Civil Code is totally
secularised.

The facts are more or less
known: women are legally barred from governing, acting as judges and executive
posts in politics; forbidden from taking part in many social and economic
activities; barred or discouraged from many jobs.

With a few exceptions the
Islamic state - the largest employer – gives employment priority to men,
excludes women from much of art and virtually all of sport; deprives them from
higher education in practice by pushing them into legalised premature marriage;
and denied them the right to even chose the colour of their veil.

In civil law a woman is
officially a second class citizen - and the few reforms introduced in 1968 have
been withdrawn. Gender inequalities have been introduced into the Criminal Code
such that women have greater punishment for many similar crimes than men. Less
rights on one side and more punishment on the other correctly describes the
algebraic "equality" of sexes under Islamic regime.

Shah and Sharia

In this article we wish to
dig deeper and look at the place of women in Iranian civil law since the latter
was introduced after the Constitutional Revolution of 1905. We believe that the
answer to the question of the inequality of women in Iran, and even broader
issues like how to evaluate the real democratic potentials of socio-political
currents with claims on Iran of today and tomorrow, will be uncovered by similar
analyses which take the much broader perspective.

The Civil Code of the
Islamic regime, save for some important changes, was taken over intact from the
previous regime. This apparent anomaly has a simple explanation: civil law, and
in particular the laws relating to ownership and personal affairs, were
originally written on the basis of Sharia (religious) law under the supervision
of senior clerics. Unsurprisingly, therefore, the family order these laws
represent was lovingly and painstakingly extracted from the yellowing pages of
religious texts written several centuries ago. The debt to these texts extends
to preserving their archaic language - which makes it particularly difficult to
translate. The role of women in the Civil Code is best observed in the laws
relating to inheritance, marriage and divorce. The Code defines four "means of
gaining ownership": revitalising barren land and taking possession of objects
belonging to no one; contracts and commitments; obtaining the right
of pre-emption; inheritance (Article 140: Book 2). Inheritance is the only real
means for women to come to ownership. The others are closed to her, since any
wealth, even if acquired through the labour of women, belongs to the family and
hence is the property of the head of the family: the father.

Let us examine how this
unique source of property and wealth fares with regards to women.

Inheritance: sexual
apartheid

The share of the mother and grandmother is always
half, or less, than the father and grandfather:

Article 906: If the
deceased has no offspring of any kind, the whole inheritance goes to the
parents. If both parents are alive the mother gets 1/3 and the father 2/3. If
the mother has a hojab(a relative who reduced her share, Article 886)
she receives 1/6th, the remainder going to the father.

Article 923: Where there
are a number of grandparents, if they are all on the father's side, the male get
twice the female; and if all on the mother's side it will be divided equally. If
the deceased has brothers and sisters, although they will not inherit, this will
reduce the share of the mother (who now has a hojab) to
1/6.

The sister's
share is half that of the brother

Article 920: If the
inheritors of the deceased are brothers and sisters of the parents or of the
father the share of the male is twice that of the female.

The wife's share is half that of the
husband

Article 900: the share of
the wife, or wives, on the death of the husband in a childless marriage is 1/4,
(the husband's share in similar circumstances is one half: Article
899).

Article
887: If the [deceased] wife had children the husband's share is reduced from 1/2
to 1/4 and if the [deceased] husband has children the wife's share is reduced
from 1/4 to 1/8.

Article 946: The husband
can inherit from all his wife's possessions but the wife only from (a) any
moveable possession (b) houses and trees. (ie the wife cannot inherit land,
cattle, water and other means of production).

Article 947: The wife
inherits the price of trees and houses not the actual. The valuation is
made on the assumption of the right of the trees or buildings to remain
standing. (The women will have no share in the legacy if the building or trees
have no right to remain and have to be destroyed).

Article 943: In case of
multiple wives, the share of the wife is divided equally between the wives and
is reduced to 1/4, 1/8, 1/16 depending on the number.

Article 949: When there are
no legatees other than the spouse, the husband inherits the whole of his wife's
estate, while the wife inherits half the husband's estate, the remainder of the
legacy is dealt with as in Article 866 [given over to the
judge].

Inheritance by the woman does not arise from her role in
the family but is payment for sexual favours.

Article 945: If a man is
ill when he marries and dies without consummating the marriage, the woman will
inherit nothing, but she will inherit if he had entered her, or if he dies after
recovery from his illness.

The husband inherits all
his wife(s) wealth on her death. The legal basis for this is that on marriage
wives become the propertyof the family. The husband's derives his
wealth, which is synonymous with the wealth of the family, partly through
inheritance, and partly through the labour of members of the family including
the women. Yet when it comes to dividing up this wealth the wife cannot take
more than a clearly defined share of this wealth, even when she is the sole
inheritor. A wife is only a limited inheritor.

The daughter inherits half or less than the
son

Article
907: In case of multiple children the male inherits twice the
female.

Article
911: Between grandchildren the legacy is divided in the ratio of 1:3 between
male and female.

Article 899: If the
daughter is the only child she inherits half the estate [if the only child is a
son his inheritance is not fixed. Deducting the fixed share (farz) of the
parents (1/3), he inherits the remaining 2/3)].

Article 902: In the absence
of a son, if there are two or more daughters they take 2/3 of the legacy [ie two
or more girls are equal to one boy].

If inheritance laws define
a system, the family order in Iran is defended by the inheritance laws which are
focused on the male and defined by blood linkage. In Iran of today, and
yesterday, these laws are rooted on relations between two completely different
and unequal genders which cannot be merged in any way - there operates a total
legal sexual apartheid.

Proposing, dowry

A woman,
regardless of age, and particularly if a virgin, has not the right to chose her
husband except in exceptional circumstances.

Article 1034: It is
possible to seek the hand in marriage of any woman free of any obstacle to
marriage [ie the choosing of a marriage partner is a male
prerogative].

Article 1043: The marriage
of a girl, even if over 18 years, is dependent on the permission of the father
or paternal grandfather. If the father or the father's father refuse this
permission without an acceptable reason, the girl, by introducing the man
she wishes to marry, and the conditions of marriage and dowry they had agreed
among themselves, can apply to a marriage office. The office can perform the
marriage ceremony five days after it had informed the father or paternal
grandfather, [what constitutes and who decides on the unacceptable reason is
unclear].

Dowry (mahr) promised by the husband to the wife is
nothing but a price paid for sexual possession of her body:

Article 1080: Both parties
must decide on the amount of mahr.

Article 1082: A woman will
gain possession of the mahr on marriage and can do what she will with
it.

Article
1085: A wife can refuse to fulfil her duties towards the husband until the
mahr is handed over to her - on condition that the mahr is halal
(legitimate from a religious angle).

Article 1088: (In a
permanent marriage - as district from "temporary marriage" - the amount of
mahr is not stated or its absence stipulated) if one of the couple dies
before the marriage is consummated the woman is not entitled to any
mahr.

Article 1092: If the
husband divorces his wife before consuming the marriage she receives half her
mahr. If he had already paid more than half the mahr, he can ask
her to return the excess either in kind, in cost or symbolically.

Article 1093: If
mahr was not stated in the marriage contract, and the husband divorces
his wife before consummating the marriage and determining the amount of
mahr, she can only claim the mahr due to temporary wives (marh
el-mottae'h). If divorce occurs after consummating the marriage she is
entitled to marh el-mesl (estimated depending on her social
origin).

The relations described in these and similar
Articles are those of a commercial transaction with sexual favours as the
commodity being exchanged. There are no trace of inter-human relations in these
lines.

Marriage and divorce

In return for
subsistence she surrenders to her husband her right to home and job.

Article 1106: In a
permanent marriage the husband must give subsistence (nafagheh) to his
wife. Article 1107 defines this as housing, clothes, food, and furniture in
keeping with her stature and includes servants if she is accustomed to these or
needs it because of
illness or bodily defects.

Article 1114: Unless
otherwise specified [in the marriage contract] the wife must live in the house
determined by her husband.

Article 1115: The husband
can ban his wife from pursuing a trade or industry which conflict with the
interests of the family or the station of the woman herself.

A
woman sells herself for her mahr and can buy herself back by paying more or less
that amount.

Article
1133: A man can divorce his wife any time he wishes.

A women does not have this
right except in very exceptional circumstances and with permission from the
court. She can incorporate various clauses into the marriage contract which
allows her to apply to the court for divorce. (Thus legally she does not
have divorce rights - it is a contract with her future husband).

Article 1146: A
"compensation divorce" (talagh-e khale') is one when a woman, because of
distaste for her husband can obtain divorce in return for money she gives to
him, regardless of whether this sum is equal, greater or less than the agreed
mahr.

Here the commodity feature of a woman in her
relationship with a man is at its most succinct: she has been sold in return for
the mahr and can buy herself back by returning (more or less) the same.
Moreover, the man is not compelled to divorce her, and is free to choose, his
choice being authorised by
sharia.

Children

Here too the male
dominance is central.

Article 1158: A child born to marriage is
the responsibility of the father (provided no less than 6, and no more than 10
months have elapsed since sexual intercourse).

Article 1159: A child born
after dissolution of marriage is the responsibility of the father provided the
wife has not remarried and the child was born less than 10 months from the
divorce (unless it is proven that less than 6, or more than 10 months have
elapsed from sexual intercourse to the birth of the child).

Article 1167: A child born
from adultery does not belong to the man (that is an illegitimate child has
neither a religious nor a legal father. It is stated in another part that
such a child will not inherit from the father).

Article 1168: The care of
children is both the right and the duty of the parents.

Article 1169: The mother
has priority until two years, and for girls seven years, after birth; thereafter
fostering is with the father.

Article 1180: An under-age
child is under the natural guardianship (velay-at) of the father and the
father's father, as is a stunted child or an idiot provided the stunting or
idiocy is related to under-age.

Article 1181: Either father
or paternal grandfather have the right of guardianship of their
children.

Article 1183: The guardian
is the legal representative on all matters relating to financial rights,
ownership of the ward.

Article 1184: Guardianship
will never pass to the mother or the grandmother. If the natural guardian
(father or paternal grandfather) does not have the ability to control the wealth
of the ward… the court will appoint a just guardian.

Article 1233: Even when
there is need to find a carer (ghayem) and not a guardian for "under-age
children, idiots, and stunted persons" the mother is not the choice: A wife
cannot care for her young children without the permission of the
husband.

Thus
after the father and his father, the guardianship of under-age children and
idiots is given over to the courts and not to the mother unless her husband
gives permission.

Article 1251: If an
unmarried woman who has been given the right to care for children remarries,
even if she is the mother of the wards, she must inform the court within one
month. The judge or his representative can, with consideration of the new
conditions of the woman, chose a new carer for the children or someone to
supervise her care.

Owning the wife

The picture given of women
in Iranian civil law, even before the Islamic regime came to power, is
thus:

Half a
person, traded and owned as a commodity, the exchange value being set by her
social standing, at the behest of her father or paternal grandfather. Like any
commodity moving from the realm of exchange to the realm of use she comes under
the care and use of the husband.

While she remains obedient
and fulfils her function she has the right to demand a living standard
commensurate with her social standing. She must continue with this service for
whatever time her husband wills. When he divorces her she has no other claim on
him than the agreed mahr - the rental agreed on the marriage contract.
She has no right on the children bar the duty to care for them.

Regardless of how much she
gives of herself for the material and spiritual gain of the family, she has but
a small and fixed share of the family fortune. On the other hand, the man has
total ownership of the women which includes her physical and sexual self (a
woman must agree to sexual intercourse whenever her husband wishes while his
reciprocal obligation to her is once every four months).

He, as the owner and
possessor of the woman, can enjoy all the rights due to any owner of an asset,
while any reciprocal demand or wilfulness on her part is taken as disobeying the
man, the owner of the household. He can take also into his possession any other
woman. The wife functions in effect as the private property of a landowner who
can at any moment possess other private lands. In keeping with ownership rights
a woman is punishable by law for disobeying the rules of ownership (marriage).
He, however, is only punished if he transgresses the ownership right of another
man. Otherwise he can do what he pleases provided he performs some trivial acts
(temporary marriage needs no more than an agreement between the two parties, the
exchange or promise of a gift and the undertaking by the girl not to re-marry
for 100 days).

What the Islamic regime
added was to make an already unequal relationship even more unequal by removing
the reforms introduced through Family Laws of 1958 and 1968: Reducing the age of
marriage for women once again to 9, removing the woman's right to divorce in
exceptional circumstances, barring women from leaving the house without
permission from her husband…

Sharia then and now

It is easy to allow the
appalling state of women under the reign of the present regime in Iran to
deflect us from appreciating that resuscitating the 1968 Family Protection Law
will not end sexual apartheid or the semi-slavery of Iranian women.

The whole legal system
underlying the family needs a major overhaul if formal gender equality were to
be achieved, and if the political systems, which in different guises, lean on
this inequality to sustain the enslavement of both men and women, is to be
demolished.

Yet
both the possibility and need for fundamental changes in the
family law encoded in the Iranian civil code exist today and can be argued for:
This order is incompatible with current economic realities. This system is one
founded on a father-centred family, an independent economic unit, which
sustained a semi-nomadic semi-agricultural society. In this order the legal
status of the family derives from its socio-economic role where the father acts
as the guarantor of the unity and oneness of the elements of the family, land
and other means of production, thereby creating the external conditions which
guaranteed the survival and reproduction of the family.

For some time now these
condition have disappeared in Iran. The family as an independent unit of
production has collapsed and large sections reorganised in new economic units.
These new economic units, whether factory, farm or small service enterprises,
rely on the free labour of individuals. Gone are any traces of the
family in its totality. Exceptions apart, the equality of its components,
in the legal-formal sense, have been accepted. In this equality, men and women
are unconnected to each other, and as individuals independently enter into
exchange or are objects of exchange.

In this new order, the
right of being master is not with the father of the family but with the
management of the enterprise or institute. The sex of the manager is, in the
legal sense, immaterial to the economic unit, and a woman is as free to leave
the job as the man, and has as much choice of taking another job - assuming one
exists - as her male counterpart.

Of course modern capitalism
continues to resurrect and reproduce pre-capitalist modes, alongside modern
forms of production. This intermixing of several modes of production is
particularly marked in peripheral capitalist states. Among these is the use of
domestic labour of various kinds including domestic housework.

Yet, at least for those
professing democratic credentials, it would be totally anachronistic to support
such archaic forms of exploitation. These persons need to ask themselves how
compatible is the existing legal system with this productive and economic unit,
and how long is it defensible in the name of cultural, moral and whatever
values?

Democracy is impossible to
construct on the current civil law. A democratic system, no matter how unradical
and irresolute, cannot ignore two principles: that of formal-legal freedom and
that of formal-legal equality of all elements of society.

The preservation of sexual,
ethnic or religious apartheid, of any second and third class citizenship and the
formal and legal acceptance of various forms of slavery have little affinity
with democracy. Only a non-democratic, domineering and paternalistic order can
be constructed on a system based on male domination. While the psychological,
cultural and legal basis of the family is on authority, guardianship and
centrality of the father it is not possible to escape a political order
dependent on a shah, a velayate faghih (absolute rule of the
knowledgeable cleric on civil and political society), a leader, or a further.
The removal of the chador (Islamic covering from head to toe) may hand
over the rule of the ayatollah to an authoritarian shah, but cannot reorganise a
non-democratic political order into a democratic one.

While this legal order
persists religion and state remain inseparable. There is no place in a secular
state, one where religion and state have been separated, for substituting
sharia for law, quotation for rationality and Qur'anic text for
decision.

Notwithstanding the belief
current among much liberal and even left opinion, to remove the clergy from the
levers of power is not synonymous with a secular state.

For this the law
must be released from the prison of sharia. To the extent that
sharia rules over the legal framework of the state, to that extent
religion rules over that state, and one cannot speak of a democratic government,
or even of the rule of law. To accept sharia laws is to accept the right
of the religious jurist to extract these laws. No matter how limited or
proscribed that right, you cannot stop the religious lawmaker from calling into
question secular laws, and ultimately their legitimacy. Such societies are
marked by dual (and even multiple) laws, laws characterised by their
impermanence.

The fact that women were
given the vote in the years leading to the revolution and other gains are
important achievements of the women's movement in Iran. But let us not lose
sight of the fact that, from what has been achieved, to what must be reached,
there is a huge gulf.

You
cannot get the right to vote, and consolidate it, in the political sphere, and
surrender to its opposite at home. The freedom of women in the socio-political
setting and their slavery at home are not compatible. To deny the right of
self-ownership on a woman's body is inconsistent with a society based on equal
and free citizens.

The legal framework that
our Civil Code provides for women is that of a society glued to barbarism, far
from civilization. A society where women are "honourable ladies, sacrificing
mothers and wives, under whose feet paradise grows": but have not the right to
own, to travel, to marry, to work, to study… that society cannot escape the
guardian, the master, the dictator, the demagogue, the ayatollah, the
shah…

In
today's Iran, the many self-proclaimed defenders of democracy and disengagers of
religion and state are at a historic cross road. They must confront squarely the
question of the need for the legal-civic equality of sexes. When paying lip
service to the principle of the equality of men and women, what family order and
what legal framework do they accept? When speaking of political realism
how committed are they to their principles? Will they once again in a
"virile manner" vault over the short wall of women? Recent history has been less
than edifying.